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With Californians increasingly turning against capital punishment, political forecasters say the vote on Prop 34 — the anti-death penalty initiative — could be extremely close.

In September, the polls had Prop 34 losing by a wide margin. However, a new poll by USC Dornsife and the Los Angeles Times shows the gap narrowing to just three percentage points — 45 to 42 percent.

When pollsters asked recent converts to the anti-capital punishment side what changed their minds, most cited capital punishment’s high cost and the increase in exonerations by DNA testing as major factors in their decision. If these many condemned people have been proven innocent, they reason, the judicial system is too imperfect to mete out such a final and permanent sanction.

The Debate

The death penalty debate has been raging for so long, most of us can recite the arguments chapter and verse by now. Deterrence, the cost, closure for victims’ families, eye-for-an-eye justice and the immorality of state-sanctioned killing are just a few of the ideas that have been screaming at each other for years, changing very few minds.

The imperfect system/too final penalty argument had also been cited by the anti-capital punishment crowd, but until recently was more theory than fact. This argument asked folks to imagine the torture of being mistakenly condemned and considered by society to be unworthy of living — to imagine themselves and their family in that hellish situation, marking the days off to the exact day of your erroneous-but-certain death — while the real killer remains at large.

The imperfect system argument, which often included references to overzealous prosecutors, ineffective counsel, railroading cops, mistaken eyewitnesses and faulty lab work was usually countered by the assertion that capital cases’ appeals and exacting checks and balances kept the innocent from being put to death.

Some even conceded that a very few wrongful deaths might slip by but considered the death penalty so valuable, a mistake now and then would be OK. However, I doubt these folks ever visualized members of their own family or themselves as potential death penalty martyrs. After all, people mistakenly charged with capital offenses, they reason, are probably criminals or lowlifes anyway, or they wouldn’t have found themselves in such an awful predicament.

Delbert Tibbs

In 1974, Tibbs was hitchhiking in Florida when he was stopped by police and questioned about a rape/murder that had occurred earlier that night. Although Tibbs was some 200 miles from the site of the crime — the brutal murder of a man and the rape of the man’s girlfriend — and did not match the victim’s original descriptions of the assailant, the police took Tibbs’ picture. The photograph was then sent to Fort Meyers, where the victim identified Tibbs as the rapist/killer. Although Tibbs had an alibi, the victim’s ID and a jailhouse informant’s claim that Tibbs had boasted of the crime were enough to send Tibbs to Florida’s death row.

Fortunately for Tibbs, the informant recanted his testimony after the trial, saying that he had lied for the prosecution in exchange for lenient sentencing in his own rape case. The recantation and the contradictory identifications by the rape victim eventually led to Tibbs’ exoneration in 1977.

Warning: If an overzealous prosecutor, mistaken identification and lying snitches can convict a hitchhiking seminary student who was nowhere near the crime, they can convict anyone.

DNA Testing and Curtis McCarty

Then the 80s brought us DNA testing. Tales of death row exonerations began appearing more frequently in the news. Such exonerations as the 2007 Curtis McCarty case in Oklahoma had people rethinking their position on the death penalty.

After spending 21 years behind bars — 19 on death row — McCarty became a free man. McCarty had been convicted twice of murdering 18-year-old Pamela Kaye Willis. His first conviction was overturned because of prosecutorial misconduct. However, the most damning evidence against McCarty from the first trial — proof that strands of hair collected at the murder scene were his — was presented at the second trial. The jury found him guilty and sentenced him to die again.

In 1995, an appellate court upheld McCarty’s conviction but ordered a rehearing on McCarty’s sentencing. Again, Curtis McCarty was sentenced to death — three times in all.

Then in 2000, while under investigation by the FBI for submitting phony forensic results, Joyce Gilchrist, Oklahoma City’s forensic analyst, was asked by McCarty’s attorneys to re-examine the hair fibers. She told them the samples collected at the scene had been lost or destroyed.

Based on the investigation’s finding of numerous instances of fraudulent testimony by Gilchrist, McCarty’s lawyers got permission to perform DNA tests on sperm collected from Willis’ body. Negative results of that test, plus Gilchrist’s unreliable forensics persuaded a judge to grant McCarty a third trial.

Armed with results of the sperm test, DNA tests proving that fingernail scrapings recovered from Willis’ body came from a different man, and suspected fraudulent forensics, McCarty’s lawyers asked a judge to vacate the convictions and to drop all charges against their client.

In 2007, McCarty was freed.

Lucky Guy

Despite having spent over two decades in prison for someone else’s crime, McCarty is a lucky man. He had dedicated and able attorneys fighting for him. Additionally, McCarty’s case happened to catch the eye of the Innocence Project, a group of lawyers and law students at Yeshiva University who assist inmates with cases that could benefit from modern DNA testing. Since 1992, the Innocence Project has helped remove 17 people from death row.

Death penalty supporters may point to McCarty’s eventual exoneration as proof of the system’s infallibility. However, that conclusion seems to overlook McCarty’s good fortune. For example, analyst Gilchrist had testified in thousands of cases over twenty years, including a number of capital cases. It was sheer luck that suspicions of her perjury habit surfaced while McCarty was still breathing. Also, McCarty was blessed with lawyers who gave a damn — not all do. Finally, the Innocence Project — as dedicated and effective as they are — are only able to get involved in a limited number of cases. Fortunately for McCarty, his case happened to be one.

The Ultimate Argument

There have been previous death row exonerations — 140 since 1973 — but apparently that number (3.5 per year) fell within the acceptable range for death penalty supporters. It also supported their belief that the system works, however belatedly.

But with DNA testing, the number of exonerations has jumped to five per year between 2000 and 2007. For an increasing number of voters — nationwide and in California — that’s just too many people. They realize that in many of these cases, the exonerations were the result of advocacy from outside the system, advocacy that very easily could have been focused on some other poor soul while the wheels of “justice” rolled over a number of innocent people.

On the other hand, they reason, life with no possibility of parole will keep killers off the streets for good, while allowing those wrongfully convicted a chance to fight their conviction if new evidence proves them innocent.

*

Remember how we used to argue about the death penalty? You said it was a deterrent; I said it was meted out unfairly. You said it saved money; I said it wasted money.

Then we began to see an increasing number of stories in the news about DNA-based death row exonerations facilitated by such organizations as the Innocence Project and we put our argument on hold.

Wonderful as those stories were, they left us with one very disturbing and inescapable question: If these many lives are being saved because of the efforts of outside groups with limited resource and staff, how many other innocent lives are going all the way to the gurney because the Innocence Project is busy saving somebody else… 6, 10, 100?

Though death sentences nationwide are on a steady decline, Los Angeles, Orange and Riverside Counties are keeping California firmly rooted in the Dark Ages with 2009’s record number of execution orders.

California in the Lead

According to a recent ACLU study, even “Hang’em High” Texas with its 11 death verdicts couldn’t keep up with L.A.’s 13. The difference, of course, is that Texas actually kills condemned people while California has been on a temporary death hiatus since it executed Clarence Ray Allen in 2006.

Apparently, the state can’t find a licensed doctor willing to violate the Hippocratic Oath by intentionally killing a human by lethal injection. It seems many doctors find the Oath’s #1 precept, “First, do no harm,” to be at odds with the job’s #1 requirement, “First, pump the patient full of poison until his heart stops,” so this position continues to be one of the very few jobs remaining on California’s “help wanted” list.

But, doctors aren’t immune to California’s current unemployment crisis. We are just one unemployed doctor’s rationalization away from polishing up the gurney and clearing the IV tubes.

According to the California Dept. of Corrections and Rehabilitation, the state also leads the nation with 701 prisoners on its death row. If L.A. and her sister counties continue to hand out death verdicts at their 2009 rate, and the job of executioner remains unfilled, San Quentin will be forced to add a few wings to its already severely overcrowded death row. Chowchilla, the state’s death row for women, is holding steady at 16, with the most recent addition of Cathy Lynn Sarinana in 2009.

Nationwide, there are about 4,000 people on death row. With Belarus the only European nation still employing capital punishment, and the rest of the Americas carrying out zero executions in 2009, the Killer Countries Club’s membership has been reduced to such bastions of human rights as China (the world leader), Iran, Yemen, Saudi Arabia and us.

The Innocence Problem

According to Amnesty International, since 1973 over 130 people have been released from American death rows because they were proved to be innocent. Nine were exonerated in 2009 alone. These were the cases that happened to catch the attention of someone or organization that gave a damn. What about the others who weren’t lucky, or literate enough to bring attention to their cases?

All arguments regarding the death penalty—efficacy, racial disparity, deterrence, morality, etc.— pale in comparison to the inescapable conclusion drawn from these exoneration stats: The United States has executed—and continues to execute—innocent people.

For those who claim that the “timely” exoneration of death row innocents proves that the system works, consider the following story.

In 1981, Leonel Herrera was convicted of killing a police officer in Texas, and sentenced to die. Twelve years later, Herrera, who had professed his innocence from day one, was put to death. His last words were, “I am innocent, innocent, innocent. I am an innocent man, and something very wrong is taking place tonight.”

One year before the execution, convincing new evidence surfaced, strongly indicating that the actual killer was Herrera’s brother, Raul. The evidence included affidavits from eyewitnesses and the recantation of original trial witnesses.

One affidavit came from Raul’s attorney, who swore Raul had confessed to him that he was the cop killer, and one was written by Raul’s son, Raul Jr., who, though nine years old at the time, clearly remembered seeing his dad shoot the policeman.

This is how the system worked for Leonel: Texas determined that the new evidence was discovered too late because in Texas new evidence must be presented within 30 days of sentencing.

The U.S. Supreme Court ruled 6-3 that Herrera was not eligible for “federal relief based on newly discovered evidence of actual innocence, when the defendant’s original trial had been free from procedural error.” In other words, Leonel Herrera was put to death on technicalities.

For more examples of likely mistaken executions, check out the National Coalition Against the Death Penalty’s (NCADP) “Shouting From the Rooftops.” Granted, NCADP is clearly an anti-death penalty organization, but the stories here are troublesome, to say the least, and have a mighty loud ring of truth.

Sacrificing Innocent Folks in the Name of Justice

This begs the question at the very heart of the death penalty debate: Is it morally OK to sacrifice a few innocent people for the societal benefit of the death penalty? Maybe there’s an acceptable ratio; say, one innocent life for every 700 guilty; 4 innocents for every 2,000 guilty. Higher? Lower?

If you think sacrificing an innocent person now and then is acceptable, you probably have lots of company. You definitely have a kindred spirit in Steven D. Stewart, Prosecuting Attorney for Clark County, Indiana.

“Our system of justice rightfully demands a higher standard for death penalty cases,” writes Stewart on his web page , however, the risk of making a mistake with the extraordinary due process applied in death penalty cases is very small, and there is no credible evidence to show that any innocent persons have been executed at least since the death penalty was reactivated in 1976. The 100+ death row inmates ‘innocent’, ‘exonerated’ and released, as trumpeted by anti-death penalty activists, is a fraud. The actual number of factually innocent released death row inmates is closer to 40 [italics mine] and in any event should be considered in context of over 7,000 [italics mine] death sentences handed down since 1973.”

Stewart closes with this interesting comparison: “The inevitability of a mistake should not serve as grounds to eliminate the death penalty any more than the risk of having a fatal wreck should make automobiles illegal.” Stewart’s car crash metaphor omits the fact that there is an alternative to his “fatal wreck” called “life with no possibility of parole.”

But, he has found an “acceptable” innocent-to-guilty, killing ratio: 40 innocents to 7,000 guilty sounds about right to him. I wonder if that ratio would still be OK if one of those 40 innocents happened to be Stewart’s son or brother, or maybe Stewart himself.

We read about prosecutorial and law enforcement misconduct regularly—everything from brutally forced confessions, witness intimidation, to planted evidence and beyond. We know about jailhouse informants—people whose relationship with the truth is strained enough without prosecutors offering lenient treatment in exchange for the right testimony. We’ve heard stories about defense counsel in capital cases falling asleep during proceedings, or showing up drunk in court. If you believe for one moment that there have only been 40 innocent people sentenced to die in America since 1973, then you either pay no attention to current events, or you’re running for D.A. in some Indiana county on a “tough on crime” platform.

The Only Option

National statistics show that Americans are growing suspicious of the death penalty, and getting tired of paying for it. When asked if they would do away with capital punishment if life without parole meant “permanent imprisonment with no chance of getting out–ever” the majority answered “yes.” Intriguingly enough, there are a number of states that refuse to give juries that option.

On the other hand, there are 15 states that have no death penalty or resultant spikes in capital offenses.

I love my family and friends far too much to support any system that would give known, vicious sociopaths a chance to get anywhere near them. But, I can’t support a penalty that kills innocent people. Fortunately, we have the option of life with no parole in our state. We also have the comforting fact that in 25 years, not one California prisoner sentenced to life without parole has gotten out of custody; not one. In California capital cases, life with no parole means exactly what it says, and should be the only option.

Our justice system is just too imperfect for such a perfectly final punishment.